Announcements
• Beginning Friday at 12:00 p.m., you and your moot court
partner may sign up as Appellees or Appellants.
• The sign-up sheet will be posted on my office door.
• Your Standard of Review assignment, which we will
discuss later in class, is due in class Monday, Feb. 2
• Class on Monday will be at 3:00 in Room 273 (per the
FBI’s request)
Court Watching Requirement
at Drug Court
• Drug Court is held every Wednesday at 4 p.m.
• City Jail Courtroom - 1600 26th Street.
• Call the Docket Clerk, Michelle Williams at 759-2137
if you would like to attend.
• Be there by 3:00 p.m. for the explanation.
Marino v. Rice
Motions/Procedural Time Line
The Standard of Review
De Novo
Clearly Erroneous
Abuse of Discretion
Substantial Evidence
Remember, during a trial
•
The Jury determines issues of facts by
listening to the evidence such as the
testimony of witnesses.
•
The Judge determines issues of law.
Since the appellate judges were not
present at trial, they are more likely to
substitute their judgment on matters of
law but less likely to on
findings of fact.
Standard of Review
• An appellate court rarely has unfettered
discretion to make decisions.
• The appellate court is usually bound by a certain
“standard of review” to decide the case before it.
• The standard of review differs depending on
what type of issue is being raised before the
court.
Standard of Review
• Except for de novo, the standard of review gives
deference to the
• winner at the trial level or the appellee. This is why so
few appeals are successful.
• The petitioner/appellant has the burden of showing that
there was error below, and thus has the responsibility to
advise the court of the appropriate standard of review.
• Moreover, the appellant and the appellee may take a
different view about what type of review the court is
empowered to apply.
Standard of Review
• Case law, state rules and statutes address appropriate
standards for various issues.
• The best way to find the appropriate standard of review
is to research your legal issue generally.
• Recent cases in your jurisdiction that are on point legally
and factually may also give you the appropriate standard
of review.
Appeal De Novo
(No Deference)
• (Means appeal from the beginning) When
questions of law come to the appellate court, it
may exercise independent judgment in the
reviewing the case and is free to disagree with the
trial court.
• For example, a trial judge’s decision about
summary judgment or the granting or denying of
other dispositive motions is reviewed de novo.
Clearly Erroneous
(Substantial Deference)
• The appellate court will not disturb findings of
fact unless such findings of the trial court are
clearly erroneous.
• The trial judge was at the trial and was able to
observe the demeanor of witnesses. The appellate
court will defer to the trial court unless the weight
of the evidence shows that the judge’s decision is
clearly erroneous. As long as the fact findings are
plausible, they will not be set aside.
Abuse of Discretion
(Extreme Deference)
• On matters entrusted to his or her discretion, a trial
judge has considerable latitude to decide the
question.
• The appellate court should find that a trial judge
abused his or her discretion if it is firmly
convinced that the trial judge acted arbitrarily or
committed a clear error of judgment.
Substantial Evidence
(Extreme Deference)
• A JURY VERDICT must stand unless the
appellant can show that there is no substantial
evidence to support it, considering the evidence in
a light most favorable to the verdict with all
reasonable inferences deducible from evidence
drawn in support of the verdict.
Mixed Questions
of Law and Fact
• The standard of review for mixed questions of law and
fact varies depending upon whether the question is
more factual or more a matter of law.
• The appellate court usually must accept trial court’s
findings of fact unless clearly erroneous but
determination of whether those facts satisfy a legal test
is reviewed de novo.
Standard of Review
• What are the issues that serve the basis for your
search for the standard of review in this case?
• How do you find the appropriate standard of
review for the issues presented by the notice of
appeal in your problem?
• What kind of cases should you use for the
standard of review?
Research Path
• How might you go
about researching the
two issues for your
appellate brief?
Research Path
• For the Motion to Dismiss
• Look up 28 U.S.C. § 1332 cases in your circuit.
• What key words might you use to limit this
research via the digests or legal databases?
• Remember key number searches. Use computer
databases to cross check or sheppardize
Research Path
• For the Motion Granting Summary Judgment
• Look up 720 Ill. Comp. Stat. 5/12-7.1.
• Look at the annotations; sheppardize those cases.
Read the digests using helpful search terms to validate
and look for other cases. Use a computer database
using those search terms.
Research Path
• Remember For the Illinois
hate crime issue, you need
not limit your research.
• However, for the subject
matter jurisdiction issue, you
should limit your research to
the Seventh Circuit. The
only United States Supreme
Court cases you need will be
cited therein. You may limit
your research of district
court cases in the Seventh
Circuit to cases after 1995.
Assignment
• For next Monday, February 2, as you research the
problem, look for the standard of review for a denial a
Motion to Dismiss for Lack of Subject Matter
Jurisdiction.
• Also look for the standard of review for determining,
upon appeal, the grant of a Motion for Summary
Judgment.
• Citations for the standard of review of both issues on
appeal should be from authoritative sources (Cases in
your circuit).